The lawyers appealing against the convictions of Abdul Quader Mollah for crimes against humanity have filed two applications seeking the recusal of two judges from the appellate division - Justice Sinha and Justice Manik.

In relation to the Justice Manik, the key allegations against him concern his claimed presence and comments at certain meetings whilst in London in April 2010 and in June 2011 relating to the International Crimes Tribunal which the defence states 'has eroded his credibility and threatened the integrity and independence of the appeal proceedings.'

These concerns are set out in paragraphs 15 to 19 of the application:

15. That on 1st April 2010 Mr. Justice AHM Shamsuddin Choudhury attended a meeting of the members of Awami League and Ghatok Dalal Nirmul Committee at the Dockland Memsab Restaurant in East London. It is stated that both the Awami League and the Ghaok Dalal Nirmul Committee had campaigned for the trial of the Respondent as a war criminal. In the said meeting the leaders of Awami League and Mr. Shahrier Kabir, the Acting President of the Ghatok Dalal Nirmul Committee were present and they were campaigning for the trial of alleged war criminals in Bangladesh. This was reported on 9th April 2010 in the Daily Amar Desh. It is respectfully submitted that the presence of the Honourable Judge in the said meeting to support the cause of the Awami League and the Ghatok Dalal Nirmul Committee who had actively and publicly campaigned for trial of the Respondent as a war criminal is a evidence of bias and sufficient to disqualify him to be a judge in the instant appeal.

16. Further on 21st June 2011 Mr. Justice AHM Shamsuddin Choudhury attended a public meeting at the Crowne Plaza Hotel, London and launched a public attack on a member of the defence team of the Tribunal and then proceeded to speak about the Tribunal, the legal framework, the practice of the Tribunal and the trials. In particular the Hon’ble Justice declared, in his detailed presentation, that the trial process met international standards and that the criticisms raised by the defence were without foundation. It is respectfully submitted that the Hon’ble Justice made a number of public declarations that concern a number of matters that are now subject to appeal. ....

18. At the public meeting on 21st June 2011 the Hon’ble Justice went further than merely commenting on the general legal and constitutional framework. The Hon’ble Justice gave a detailed account of the legal and constitutional framework, dismissing the numerous concerns raised by the defence as to lack of due process, and further by discussing matters that were sub judice and expressing an opinion on their eventual outcome, there is reasonable doubt that the Respondent will now receive a fair hearing and the Hon’ble Justice will dispense justice according to his oath on the basis of the public remarks he made on 21st June 2011. It is further submitted that a number of the Hon’ble Justice’s remarks amounted to political statements unbecoming a member of the Judiciary.

19. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination into – there is little doubt that the Hon’ble Justice attended the meetings and made the public declarations – the question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meetings dated 1st April 2010 and 21st June 2011 and making such public declarations.

In relation to Justice Sinha, it is alleged that the judge made an offer to the former chairman of one of the international crimes tribunals, Justice Nizamul Huq Nassim about being promoted to the appellate division if he completed three tribunal cases. This, the defence claim, 'amounts to an unlawful interference in the proceedings pending before the Tribunal' and that he 'has disqualified himself from sitting as a judge in any Appeal from any Judgment of the Tribunal.'

This are set out in paragraph 17 of the application:

17. That in Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’ (Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This one [Delwar Hossain Saydee], Ghulam Azam and Saqa [Salauddin Qader Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we will bring you here [to the Appellate Division of the Supreme Court]. Thereafter you will not be required to stay there [International Crimes tribunal]. This is all we talked about. I said you may do whatever you want to do, promotion should be given first. My concern is promotion.”

The defence claim that if this does not amount to unlawful interference in the proceedings, 'it raises serious concerns of appearance of bias against all the Accused before the Tribunal including the Appellant.'

This is the written application filed on 3 April 2013 by Abdul Quader Mollah's defence team seeking the recusal of Mr. Justice Surendra Kumar Sinha. Note that this was filed along with another similar application relating to Justice Shamsuddin Manik. It is not yet known when the applications will be heard.

1. That this application has been filed pursuant to the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule, seeking the recusal of Mr. Justice Surendra Kumar Sinha.

2. That Article 96 (4) (a) of the Constitution of Bangladesh provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct).

3. That pursuant to clause 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independent judiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

4. That furthermore, clause 2 of the Code of Conduct provides that: “(2) A judge should avoid impropriety and the appearance of impropriety in all activities. (2A) A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

5. That the Code of Conduct also provides for instances when a judge should disqualify himself from the proceedings. Clause 3(6)(a) of the Code of Conduct provides that:

“The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”

6. The Code of Conduct stipulates that any act: “which erodes the credibility and independence has to be avoided. The Code of Conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.”

7. That Article 148 of the Constitution provides for an oath to be taken by members of the superior Judiciary. According to the Third Schedule of the Constitution a judge will solemnly swear or affirm that he will: “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear or favour, affection or ill-will.”

8. Pursuant to the preamble of the Code of Conduct, in taking this oath a judge is subject to the provisions of the Code of Conduct including those explicitly referred to in this application.

9. That the right to an independent and impartial judiciary prescribed in the Code of Conduct is also a standard obligation to adhere to under international law. Article 10 of the Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

10. That this is further reiterated under Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that: “The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])

11. This fundamental right to an independent and impartial Judge is also recognised in Article 40 (1) of the Rome Statute for the International Criminal Court (ICC) which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41 (2) (a) ICC: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.”

12. That Bangladesh is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its international obligations.

13. That Mr. Justice Surendra Kumar Sinha has been serving as an Hon’ble Justice of the Appellate Division of the Supreme Court of Bangladesh. On 31st March 2013 the Hon’ble Chief Justice constituted a bench of the Appellate Division to hear the instant Appeal comprising six Hon’ble Justices of the Appellate Division including Mr. Justice Sinha.

14. That the Appellant/Applicant prays to the Appellate Division of the Supreme Court to avail itself of the opportunity in the abovementioned provisions to order the recusal of the Hon’ble Justice as the only possible means to ensure proper dispensation of justice.

15. On 8th December 2012 the British Weekly ‘The Economist’ published a report titled ‘Discrepancy in Dhaka’, in its online edition raising questions about the integrity of the former Chairman of the International Crimes Tribunal-1. Following the publication in The Economist, the Bangla Daily Amardesh published a series of reports on the Skype communication between Justice Nizamul Haque and Ahmed Ziauddin for a period of five days from 9th December to 13th December 2012.

16. On 15th December 2012, the Economist published a long article on International Crimes Tribunal Bangladesh quoting excerpts from the 17-hour Skype conversation and 230 email communication between Mr. Justice Nizamul Haque, the former Chairman of ICT-1 and Dr. Ahmed Ziauddin, an expatriate Bangladeshi lawyer living in Brussels.

17. That in Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’ (Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This one [Delwar Hossain Saydee], Ghulam Azam and Saqa [Salauddin Qader Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we will bring you here [to the Appellate Division of the Supreme Court]. Thereafter you will not be required to stay there [International Crimes tribunal]. This is all we talked about. I said you may do whatever you want to do, promotion should be given first. My concern is promotion.”

Relevant portion of the transcript of the conversation of 6th September 2012 is quoted below:

নিজামুল হক নাসিম : উনি কয় একটা দেন। সিনহা বাবু কইছে, ডিসেম্বর এর মধ্যে তিনটা দেন। এইটা, গোলাম আযম সাহেবের, আর সাকা। এই তিনডা দিয়া ফালাইতে পারলেই হইছে। তারপরে নিয়ে আসি আপনারে আমরা এইখানে। এরপরে ওহানে আপনারে আর লাগবে না। এই হইছে কথা আর কি। আমি কইছি, যা করেন করেন, প্রমোশনডা দিয়া লন আগে। আমার কতা প্রমোশন, হা... হা... হা...।“English translation (unofficial)Justice Nassim: I will see it later but in the first judgment I will give it. I don’t know whether I will be here but the fact is in the first judgment I will place it.Ziauddin: It’s very important. Where will you go again?Justice Nassim: Let a judgment commence. I will bring you here.Ziauddin: Not the only one after the final judgment…Justice Nassim: His language….his language…Ziauddin: Big brother has told me to wait for this…Justice Nassim: Their view is they will not place the judges of appellate division and they place there the government adamant judges. I said, “Sir, then I will not get the promotion.”Ziauddin: You will be the victim that’s all. I can’t understand their view. This is always happening. You are in high court division now, you are dealing with the appellate division. Now you are doing this.Justice Nassim: They can do anything…

18. Following the publication of the Skype conversation in the Economist and the Daily Amardesh Mr. Justice Nizamul Haque resigned.

19. The Accused/Applicant would like to state here specifically that at no point of time from December 2012 till today, any denial has been made by the Registrar of the International crimes Tribunal or by Mr. Justice Nizamul Haque denying the contents of the Skype conversation or the email communication between him and Dr. Ahmed Ziauddin. The Applicant would further state that no denial has been made by the Registrar of the Supreme Court on behalf of Mr. Justice Surendra Kuman Sinha that he [Mr. Justice Sinha] had had no such conversation with Mr. Justice Nizamul Haque. It is common knowledge that no one- the Ministers, the Judges, the Prosecutors or the expatriate Bangladeshis who have been implicated in the Skype conversation and email communication have ever denied their involvement. On the other hand in his Order dated 6th December 2012 issuing contempt proceedings against the Editor and one other of the Economist, Mr. Justice Nizamul Haque admitted his conversation with Dr. Ahmed Ziauddin.

20. That it is apparent from the above conversation that Mr. Justice Surendra Kumar Sinha assured him of elevation to the Appellate Division of the Supreme Court if he [Mr. Justice Nizamul Haque] passes three verdicts. This amounts to an unlawful interference in the proceedings pending before the Tribunal. In doing so, he has disqualified himself from sitting as a judge in any Appeal from any Judgment of the Tribunal.

21. That in the alternative, Mr. Justice Surendra Kumar Sinha’s proposal of elevating Mr. Justice Nizamul Haque to the Appellate Division raises serious concerns of appearance of bias against all the Accused before the Tribunal including the Appellant. By such conduct, Mr. Justice Surendra Kumar Sinha has eroded his credibility within the meaning of the provisions of the Code of Conduct and threatened the integrity and independence of the Appellate Court i.e., the Appellate Division of the Supreme Court which is hearing the instant Appeal.

22. That further, Mr. Justice Surendra Kumar Sinha being a sitting judge of the Supreme Court of Bangladesh is bound by the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule. Article 96 (4) (a) of the Constitution provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct).

23. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination as to actual bias of the Hon’ble Justice. The question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his assurance to the former Chairman of the Tribunal of elevation to the Appellate Division.

24. In Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2004-15-AR 15, the Special Court for Sierra Leone Appeals Chamber referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. The Appeals Chamber concluded, as per Justice King, at para. 15: “It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”

25. Justice King, in giving judgment, concluded by referring to R v. Sussex Justices, Ex party McCarthy (1923) 1 KB 256 at p. 259 that “Justice must not only be done, but should manifestly be seen to be done.”

26. It is respectfully submitted that the overriding question in the instant case is not that of the Hon’ble Justice’s integrity, but whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his offering promotion to the former Chairman of the Tribunal.

27. This situation renders the inclusion of Mr. Justice Surendra Kumar Sinha on the bench in the instant appeal at odds with the integrity and independence of Appellate Division of the Supreme Court, contrary to the provisions of the Code of Conduct and ultimately precluding justice being done for the Appellant, and indeed any person seeking to appeal against a conviction by the International Crimes Tribunal.

28. Article 27 of the Constitution provides that: “All citizens are equal before the law and are entitled to the equal protection of law.”

29. The principle of equality of arms is a basic obligation under international law. It is implicit in Article 7 UDHR which provides that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

30. This principle is reiterated in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

31. The UN Human Rights Committee tasked with upholding the provisions of the ICCPR held in De Jorge Asensi v. Spain (Communication No. 1413/2005) that: “Although Article 14 does not explain what is meant by a “fair hearing” in a suit at law, the concept of a fair hearing in the context of article 14, paragraph 1, of the Covenant should be interpreted as requiring certain conditions, such as equality of arms [the Accused-Petitioner’s emphasis] and absence of arbitrariness, manifest error or denial of justice.” (Also the Committee’s general comment No. 32, para. 26, (2007) on article 14 of the Covenant, “Right to equality before courts and tribunals and to a fair trial”)

32. This fundamental principle of equality of arms is also set out in Article 67(1) ICC which provides that: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality”.

33. That as before mentioned Bangladesh is a state party to the UDHR, ICCPR and ICC and must adhere to its international obligations thereunder.

34. Under international law, the procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect the position is very clear. If there are legitimate reasons to doubt the impartiality then that judge must withdraw from the case. In Piersack v. Belgium (Application No. 8692/79, Judgment of 1 October 1982, paras 30-32) it was held to be a violation where the trial judge had previously been a member of the department who investigated the applicant and who had initiated the prosecution against him. In Piersack the European Court of Human Rights held:

“30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. …

However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.”

35. It is respectfully submitted that the integrity of the proceedings and the process must be paramount.

36. It is respectfully submitted that the Appellate Division of the Supreme Court may take into account the established international jurisprudence on the question of objective impartiality in properly addressing the question of whether the Hon’ble Justice should recuse himself. In Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) 1 AC 119 which held that:

“…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”.

“The court cannot rely on its knowledge of the integrity of the judge concerned to outweigh the appearance of bias to the eye of the bystander. The reference point must remain the reasonable observer. This is consistent with the test laid down under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation”

37. In Prosecutor v. Anto Furundzija, ICTY Appeals Chamber: 21 July 2000: Case No. IT – 95 – 17/1, the ICTY Appeals Chamber held: “The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.” [para. 177]

“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute:

A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.” [para. 189].

38. That as a State Party to the Rome Statute of the International Criminal Court there is an obligation to apply the general principles to which it adheres. The Rome Statute sets up a framework of complementarity. The purpose of this complementarity principle is in order to establish a uniform system to try serious crimes. Admittedly this complimentary principle is only triggered in a situation where the ICC can itself take jurisdiction over the case if the national courts are unwilling or unable to proceed. However, it is the spirit of the complementarity principle that creates a number of legal obligations. The ICC was established to try and punish the most serious violations of human rights in cases where national justice systems fail at the task. It is deemed a model in international criminal justice. It must be highlighted that over 120 states participated in the negotiations at the Rome Conference which formulated the Rome Statute in 1998. Under international customary law and applying the principle of the Vienna Convention on the Law of Treaties when a State consents to be bound by a treaty it constitutes a promise to adhere to the principles in the document and to honour its spirit. It is obliged not to defeat the object and purpose of the treaty. The object and purpose of the Rome Statute is enshrined in both Article 17(2) above and the preamble of the Rome Statute which provides that State Parties to the Rome Statute are: “resolved to guarantee lasting respect for and the enforcement of international justice”. It affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished at their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation”.

39. Reference must also be made to the public statements made by the Government of Bangladesh at the ceremony when it officially became a State Party and to the numerous public statements since that time to upholding the highest international standards. At the 65th Session of the United Nations General Assembly, the Hon’ble Prime Minister of Bangladesh stated: “Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past.”

40. The Hon’ble Prime Minister clearly expressed the need to maintain the highest standards according to the legal framework of the Rome Statute of the International Criminal Court.

41. It is respectfully recalled that the UN Human Rights Committee has held that in relation to the right under Article 14(1) of the ICCPR that “all persons shall be equal before the courts and tribunals” and that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” is an absolute right that may suffer no exception (see Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), in UN doc. GAOR, A/48/40 (vol. II), p. 20, para. 5.2).

42. Firstly, independence must be institutional and functional and to determine whether the court or tribunal meets the requirements of independence, regard must be had to the manner of appointment of its members and their term in office, the existence of guarantees from external pressures and the question of whether the body has the appearance of independence.

43. Secondly, the concept of impartiality may in many cases overlap with independence. However, in order to ascertain whether the requirement is met, a test that is both subjective and objective must be applied (Eur. Court HR, Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A286-B, p. 38, para. 33). Whilst impartiality normally denotes the absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the ECHR, be tested in a variety of ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and the objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. For subjective impartiality to be made out actual proof of bias needs to be established and the personal impartiality of the judge is presumed unless there is proof to the contrary. The personal friendship between the trial judge and the Executive may not be sufficient in itself to prove actual bias. For objective impartiality to be made out the test is less strict and is fashioned on the maxim justice must not only be done: it must be seen to be done. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this regard the position is very clear. If there are legitimate reasons to doubt the impartiality then the judge must withdraw from the case.

44. The procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”.

45. It is further recalled that on 7th February 2013 the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns, issued a public statement expressing alarm and declaring that “Capital punishment may be imposed only following proceedings that give all possible safeguards to ensure a fair trial and due process, at least equal to those stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a State party.” The United Nations Special Rapporteur on the Independence of Judges, Prosecutors and Lawyers, Ms. Gabriela Knaul, further stated raised concerns about “the impartiality of judges and prosecution services of the Tribunal, as well as their independence from the executive.” The Special Rapporteurs stated jointly that any shortcomings in the trial proceedings should be carefully examined during any appeal and noted that “A credible appeal process also constitutes an imperative component of fair trial guarantees, particularly in instances, where the death penalty has been imposed.”

46. That for the abovementioned reasons in this application, the Appellant/ Applicant humbly prays that the Appellate Division of the Supreme Court will avail itself of the opportunity to issue an order directing for the immediate recusal of Mr. Justice Surendra Kumar Sinha.

Wherefore, it is most humbly prayed that your lordships may be graciously pleased to issue an order directing for the immediate recusal of Mr. Justice Surendra Kumar Sinha in Criminal Appeal No. 25 of 2013 pending before this Hon’ble Court and pass any further order(s) as it may deem fit and proper.

This is the written application filed on 3 April 2013 by Abdul Quader Mollah's defence team seeking the recusal of Mr. Justice AHM Shamsuddin Choudhury (Manik). Note that this was filed along with another similar application relating to Justice Sinha. It is not yet known when the applications will be heard.

1. That this application has been filed pursuant to the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule, seeking the recusal of Mr. Justice AHM Shamsuddin Choudhury.

2. That Article 96(4)(a) of the Constitution Bangladesh provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published in 7 May 2000 (hereinafter: Code of Conduct).

3. Pursuant to section 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independent judiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

4. Furthermore, section 2 of the Code of Conduct provides that:
“(2) A judge should avoid impropriety and the appearance of impropriety in all activities.
(2A). A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

5. That the Code of Conduct also provides for instances when a judge should disqualify himself from the proceedings. Under Article 3(6)(a) of the Code of Conduct “The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”

6. The Code of Conduct stipulates that any act: “which erodes the credibility and independence has to be avoided. The Code of Conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.”

7. Article 148 of the Constitution also provides for an oath to be taken by members of the Judiciary. This is prescribed in the Third Schedule of the Constitution and provides that a judge will solemnly swear or affirm that he will: “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear or favour, affection or ill-will.”

8. Pursuant to the preamble of the Code of Conduct, in taking this oath a judge is subject to the provisions of the Code of Conduct including those explicitly referred to in this application.

9. The right to an independent and impartial judiciary prescribed in the Code of Conduct is also a basic obligation to adhere to under international law. Article 10 Universal Declaration of Human Rights (UDHR) provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

10. This is reiterated under Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The UN Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that: “The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])

11. This fundamental right to an independent and impartial Judge is further upheld in Article 40(1) of the Rome Statute for the International Criminal Court (ICC), which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41(2)(a) ICC: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.”

12. That Bangladesh is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its international obligations.

13. That on 28th March, 2013 Mr. Justice AHM Shamsuddin Choudhury was appointed as a Hon’ble Justice of the Appellate Division of the Supreme Court of Bangladesh. On 31st March 2013 he took oath as a Justice of the Appellate Division. On the same day the Hon’ble Chief Justice constituted a bench of the Appellate Division to hear the instant Appeal comprising six Hon’ble Justices of the Appellate Division including Mr. Justice Choudhury.

14. That the actions of Mr. Justice AHM Shamsuddin Choudhury in attending a meeting with the members of Awami League and Ghatak Dalal Nirmul Committee on 1st April 2010 and the International Jurists Conference, organised by the International Council of Jurists on 21st June 2011 both in London and addressing the latter on the International Crimes (Tribunal) Act 1973, the practice and procedure of the International Crimes Tribunal (hereinafter: ‘the Tribunal') and the nature and conduct of the trials has eroded his credibility and threatened the integrity and independence of the appeal proceedings before the Appellate Division of the Supreme Court of Bangladesh.

15. That on 1st April 2010 Mr. Justice AHM Shamsuddin Choudhury attended a meeting of the members of Awami League and Ghatok Dalal Nirmul Committee at the Dockland Memsab Restaurant in East London. It is stated that both the Awami League and the Ghaok Dalal Nirmul Committee had campaigned for the trial of the Respondent as a war criminal. In the said meeting the leaders of Awami League and Mr. Shahrier Kabir, the Acting President of the Ghatok Dalal Nirmul Committee were present and they were campaigning for the trial of alleged war criminals in Bangladesh. This was reported on 9th April 2010 in the Daily Amar Desh. It is respectfully submitted that the presence of the Honourable Judge in the said meeting to support the cause of the Awami League and the Ghatok Dalal Nirmul Committee who had actively and publicly campaigned for trial of the Respondent as a war criminal is a evidence of bias and sufficient to disqualify him to be a judge in the instant appeal.

16. Further on 21st June 2011 Mr. Justice AHM Shamsuddin Choudhury attended a public meeting at the Crowne Plaza Hotel, London and launched a public attack on a member of the defence team of the Tribunal and then proceeded to speak about the Tribunal, the legal framework, the practice of the Tribunal and the trials. In particular the Hon’ble Justice declared, in his detailed presentation, that the trial process met international standards and that the criticisms raised by the defence were without foundation. It is respectfully submitted that the Hon’ble Justice made a number of public declarations that concern a number of matters that are now subject to appeal.

17. That further, Mr. Justice AHM Shamsuddin Choudhury being a sitting judge of the Supreme Court of Bangladesh is bound by the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule. Article 96 (4) (a) of the Constitution provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct).

18. At the public meeting on 21st June 2011 the Hon’ble Justice went further than merely commenting on the general legal and constitutional framework. The Hon’ble Justice gave a detailed account of the legal and constitutional framework, dismissing the numerous concerns raised by the defence as to lack of due process, and further by discussing matters that were sub judice and expressing an opinion on their eventual outcome, there is reasonable doubt that the Respondent will now receive a fair hearing and the Hon’ble Justice will dispense justice according to his oath on the basis of the public remarks he made on 21st June 2011. It is further submitted that a number of the Hon’ble Justice’s remarks amounted to political statements unbecoming a member of the Judiciary.

19. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination into – there is little doubt that the Hon’ble Justice attended the meetings and made the public declarations – the question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meetings dated 1st April 2010 and 21st June 2011 and making such public declarations.

20. In Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2004-15-AR 15, the Special Court for Sierra Leone Appeals Chamber referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. The Appeals Chamber concluded, as per Justice King, at para. 15: “It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”

21. Justice King, in giving judgment, concluded by referring to R v. Sussex Justices, Ex party McCarthy (1923) 1 KB 256 at p. 259 that “Justice must not only be done, but should manifestly be seen to be done.”

22. It is respectfully submitted that the overriding question in the instant case is not that of the Hon’ble Justice’s integrity, but whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meeting and conference dated 1st April 2010 and 21st June 2011 respectively and making the public declarations.

23. The pubic declarations that the Hon’ble Justice made were at the event of the International Conference of Jurists, organised by the International Council of Jurists, in London on 21st June 2011. At the event a member of the defence team, foreign counsel, Mr. Toby Cadman, gave a short presentation on the Tribunal, the legal and constitutional framework and set out where he believed the practice and procedures fell short of recognised international standards. The Hon’ble Chief Justice, in the company of Mr. Justice AHM Shamsuddin Choudhury, was present at the conference to receive an award from the International Council of Jurists. During Mr. Cadman’s brief address both the Hon’ble Chief Justice and Mr. Justice AHM Shamsuddin Choudhury walked out in protest. Following Mr. Cadman’s address, Mr. Justice AHM Shamsuddin Choudhury, gave an impromptu presentation in which he made a number of remarks attempting to positively assert that the legal framework met international standards. It was widely reported in the media that “Justice Chowdhury explained in detail the legal procedure adopted in the trial of the war criminals and made it clear that all steps had been taken toward ensuring a trial process based on internationally accepted standards” (http://www.thedailystar.net/newDesign/news-details.php?nid=191143)).

24. It is submitted that the international community namely Human Rights Watch (HRW), Amnesty International, International Bar Association (IBA), International Centre for Transitional Justice (ICTJ), Human Right Committee of the Bar of England and Wales, in one word have criticised that the International Crimes (Tribunal) Act 1973 and the Rules of Procedure framed by the Tribunal thereunder falls far below the International Standard. In this context the Respondent has taken a specific ground in the Criminal Appeal filed before this Hon’ble Court. In that view of the matter Mr. Justice AHM Shamsuddin Choudhury has already taken a view that the legal procedure adopted in the Trial by the Tribunal conforms to the internationally accepted standards, the Respondent/Applicant will be seriously prejudiced if he does not recuse himself from the appal proceeding before the Hon’ble court.

25. It is respectfully submitted that the matters covered by the Hon’ble Justice in his public address on 21st June 2011 now concern the same matters that form the basis for the instant appeal. The fact that the Hon’ble Justice publicly disclosed his position prior to his appointment as Judge in the instant appeal raises significant doubt as to his impartiality.

26. That on 25th September 2012 the Acting Editor of the Daily Amar Desh submitted an application before the Registrar of Supreme Court of Bangladesh for initiation of proceeding under Article 96(4) of the Constitution against Mr. Justice AHM Shamsuddin Choudhury by the Supreme Judicial Council alleging violation of the provisions of the Code of Conduct, Money Laundering Prevention Act 2002, the Foreign Exchange Regulation Act 1947 and Income Tax Ordinance 1984. On the same day he made a representation before the Hon’ble President of Bangladesh for taking appropriate action against Mr. Justice AHM Shamsuddin Choudhury under Article 96(5) of the Constitution in this regard. Subsequently this representation was forwarded by the Hon’ble President to the Ministry of Law and Parliamentary Affairs for taking appropriate measures in accordance with law. It is specifically stated that the applications for initiation of proceeding against Mr. Justice AHM Shamsuddin Choudhury under Articles 96(4) & (5) have not yet been disposed of. As such during the pendency of these applications Mr. Justice AHM Shamsuddin Choudhury is disqualified from hearing the instant appeal.

27. This situation renders the inclusion of Mr. Justice AHM Shamsuddin Choudhury on the bench in the instant appeal at odds with the integrity and independence of Appellate Division of the Supreme Court, contrary to the provisions of the Code of Conduct and ultimately precluding justice being done for the Respondent, and indeed any person seeking to appeal against a conviction by the International Crimes Tribunal.

28. Article 27 of the Constitution provides that: “All citizens are equal before the law and are entitled to the equal protection of law.”

29. The principle of equality of arms is a basic obligation under international law. It is implicit in Article 7 UDHR which provides that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

30. This principle is reiterated in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

31. The UN Human Rights Committee tasked with upholding the provisions of the ICCPR held in De Jorge Asensi v. Spain (Communication No. 1413/2005) that: “Although Article 14 does not explain what is meant by a “fair hearing” in a suit at law, the concept of a fair hearing in the context of article 14, paragraph 1, of the Covenant should be interpreted as requiring certain conditions, such as equality of arms [the Accused-Petitioner’s emphasis] and absence of arbitrariness, manifest error or denial of justice.” (Also the Committee’s general comment No. 32, para. 26, (2007) on article 14 of the Covenant, “Right to equality before courts and tribunals and to a fair trial”)

32. This fundamental principle of equality of arms is also set out in Article 67(1) ICC which provides that: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality”.

33. That as before mentioned Bangladesh is a state party to the UDHR, ICCPR and ICC and must adhere to its international obligations thereunder.

34. Under international law, the procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect the position is very clear. If there are legitimate reasons to doubt the impartiality then that judge must withdraw from the case. In Piersack v. Belgium (Application No. 8692/79, Judgment of 1 October 1982, paras 30-32) it was held to be a violation where the trial judge had previously been a member of the department who investigated the applicant and who had initiated the prosecution against him. In Piersack the European Court of Human Rights held:

“30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. …

However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.”

35. It is respectfully submitted that the integrity of the proceedings and the process must be paramount.

36. It is respectfully submitted that the Appellate Division of the Supreme Court may take into account the established international jurisprudence on the question of objective impartiality in properly addressing the question of whether the Hon’ble Justice should recuse himself. In Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) 1 AC 119 which held that:

“…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”.

“The court cannot rely on its knowledge of the integrity of the judge concerned to outweigh the appearance of bias to the eye of the bystander. The reference point must remain the reasonable observer. This is consistent with the test laid down under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation”.

“The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.” [para. 177]
“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute:

A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.” [para. 189].

38. That as a State Party to the Rome Statute of the International Criminal Court there is an obligation to apply the general principles to which it adheres. The Rome Statute sets up a framework of complementarity. The purpose of this complementarity principle is in order to establish a uniform system to try serious crimes. Admittedly this complimentary principle is only triggered in a situation where the ICC can itself take jurisdiction over the case if the national courts are unwilling or unable to proceed. However, it is the spirit of the complementarity principle that creates a number of legal obligations. The ICC was established to try and punish the most serious violations of human rights in cases where national justice systems fail at the task. It is deemed a model in international criminal justice. It must be highlighted that over 120 states participated in the negotiations at the Rome Conference which formulated the Rome Statute in 1998. Under international customary law and applying the principle of the Vienna Convention on the Law of Treaties when a State consents to be bound by a treaty it constitutes a promise to adhere to the principles in the document and to honour its spirit. It is obliged not to defeat the object and purpose of the treaty. The object and purpose of the Rome Statute is enshrined in both Article 17(2) above and the preamble of the Rome Statute which provides that State Parties to the Rome Statute are: “resolved to guarantee lasting respect for and the enforcement of international justice”. It affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished at their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation”.

39. Reference must also be made to the public statements made by the Government of Bangladesh at the ceremony when it officially became a State Party and to the numerous public statements since that time to upholding the highest international standards. At the 65th Session of the United Nations General Assembly, the Hon’ble Prime Minister of Bangladesh stated:

“Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past.”

40. The Hon’ble Prime Minister clearly expressed the need to maintain the highest standards according to the legal framework of the Rome Statute of the International Criminal Court.

41. It is respectfully recalled that the UN Human Rights Committee has held that in relation to the right under Article 14(1) of the ICCPR that “all persons shall be equal before the courts and tribunals” and that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” is an absolute right that may suffer no exception (see Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), in UN doc. GAOR, A/48/40 (vol. II), p. 20, para. 5.2).

42. Firstly, independence must be institutional and functional and to determine whether the court or tribunal meets the requirements of independence, regard must be had to the manner of appointment of its members and their term in office, the existence of guarantees from external pressures and the question of whether the body has the appearance of independence.

43. Secondly, the concept of impartiality may in many cases overlap with independence. However, in order to ascertain whether the requirement is met, a test that is both subjective and objective must be applied (Eur. Court HR, Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A286-B, p. 38, para. 33). Whilst impartiality normally denotes the absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the ECHR, be tested in a variety of ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and the objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. For subjective impartiality to be made out actual proof of bias needs to be established and the personal impartiality of the judge is presumed unless there is proof to the contrary. The personal friendship between the trial judge and the Executive may not be sufficient in itself to prove actual bias. For objective impartiality to be made out the test is less strict and is fashioned on the maxim justice must not only be done: it must be seen to be done. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this regard the position is very clear. If there are legitimate reasons to doubt the impartiality then the judge must withdraw from the case.

44. The procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”.

45. It is further recalled that on 7th February 2013 the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns, issued a public statement expressing alarm and declaring that “Capital punishment may be imposed only following proceedings that give all possible safeguards to ensure a fair trial and due process, at least equal to those stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a State party.” The United Nations Special Rapporteur on the Independence of Judges, Prosecutors and Lawyers, Ms. Gabriela Knaul, further stated raised concerns about “the impartiality of judges and prosecution services of the Tribunal, as well as their independence from the executive.” The Special Rapporteurs stated jointly that any shortcomings in the trial proceedings should be carefully examined during any appeal and noted that “A credible appeal process also constitutes an imperative component of fair trial guarantees, particularly in instances, where the death penalty has been imposed.”

46. In this regard the fact that the Hon’ble Justice has attended meetings of the Awami League and the Ghatok Dalal Nirmul Committee to support their cause to try the Respondent as a war criminal and made a series of public declarations on the nature and conduct of the trials, matters which now form the basis for the appeal, there is a sufficient basis to make out a claim of actual bias. Furthermore, the objective standard of justice must be seen to be done may be made out by reference to the pubic declarations that now warrant the immediate recusal of the Hon’ble Justice.

47. That the Respondent humbly prays that the Appellate Division of the Supreme Court will avail itself of the opportunity to issue an order directing for the immediate recusal of Mr. Justice AHM Shamsuddin Choudhury.

Wherefore, it is most humbly prayed that your lordships may be graciously pleased to issue an order directing for the immediate recusal of Mr. Justice AHM Shamsuddin Choudhury in Criminal Appeal No. 24 of 2013 pending before this Hon’ble Court and pass any further order(s) as it may deem fit and proper.

The Chief Justice created a new appellate division bench in order to allow it to concentrate on hearing the appeals from the International Crimes Division. He was able to do that after five new judges were appointed from the High Court to the appellate division, creating 11 judges in all - which were then divided up into two benches.

The bench dealing with the Abdul Quader Mollah appeal comprises the following judges

The government on the previous week appointed former judge Syed Amirul Islam as the state counsel to conduct ICT proceedings at the Appellate Division.

There are two appeals before the appellate division:

First, the government's appeal against acquittal in relation to one offense; and sentences of imprisonment in relation to five offences for which Mollah was convicted. He received life sentences for two offences and sentences of 15 years for three offences (see end of the judgment here to see details).

Secondly, an appeal from Mollah seeking an acquittal on all charges.

The tribunal has started with the government's appeal and on the first two days the attorney general's office has simply read out the judgement - on 1 April the Attorney General read out paras 1 to 119 and on 3 April the Additional Attorney General M K Rahman read out the paragraphs 120 to 299. At the end of the hearing, the Chief Justice commented that "Your speed is not enough. You guys need to speed up".

Under the new amendment to the International Crimes (Tribunal) Act 1973, the court is supposed to complete the hearing within 60 days from the date when motions are filed - which was on 4 March 2013. Whether the time limit is mandatory or advisory will undoubtedly be a matter for judicial consideration - particularly as a third of the time has already passed and the government is still reading out the judgement (something which by the by is not at all usually done in the appellate division)

In the afternoon, after the proceedings were over the defense filed two applications; one relating to the recusal of Justice Manik, and another for the recusal of Justice Sinha

Monday, April 1, 2013

The Economist Magazine published a damning editorial last month on Bangladesh’s International Crimes Tribunal.

The editorial starts by saying that the Bangladesh’s tribunal had ‘fallen a long way short of Israel’s model of due process’ concerning its trial in 1961 of the Nazi leader Adolph Eichmannn. It then set out a string of criticisms about the tribunal in Dhaka, stating that ‘these are profound judicial failings, falling short not only of the standards of the Eichmannn trial but also of the requirements of Bangladeshi law. They contradict repeated government assurances that the trials would be models of judicial process.”

It goes on to argue that the ‘ostensible and laudable aim of these trials’ helping Bangladesh come to terms with its past has ‘been an utter failure’. It then criticizes ‘most Bangladeshis’ who it says ‘are cheering on the tribunal’s flawed proceedings’ with few seeming ‘to care a jot for due process’ and everybody thinking ‘that the defendants are getting their just deserts.’

It closes with the following paragraph: ‘The Economist has no sympathy for the views of Jamaat or its backers. But justice does not exist solely for those with a particular approved outlook. As the Eichmannn trial demonstrated, due process is essential to provide true justice to the victims of genocide. Eventually Bangladeshis will also come to recognize this and demand a proper accounting. But by then it will be too late. The war-crimes tribunal is poisoning the well from which Bangladesh will one day want to drink.’

A recent op-ed in Bangladesh’s The Daily Star about the editorial is very critical: ‘The piece is typical of a mercenary writer where he just pens something only because he has to do it,’ it says. ‘The ignorance of the analyst is so obvious that he must have taken it as granted that the prospective readers, mostly Bengalis all around the globe, are a bunch of ignorant people who will digest any garbage that comes from a weekly published from a Western capital.’ It goes onto say that, The Economist is so bent on discrediting the trial that it has presented mostly unsubstantiated and ridiculous assertions, reflecting its absolute ignorance of the history of Bangladesh’s birth and the misinformation fed by its clients.’

The criticism is obviously hyperbolic. But other articles in the Bangladesh media have been similarly critical. A government news agency article, widely printed in different newspapers, quotes the respected lawyer Dr M Zahir as saying, ‘The article appears totally motivated . . . these (allegations) are rubbish.”

Comparison with the Eichmann Trial
The Economist decision to compare the Bangladesh tribunal with the 1962 Eichmann trial in Israel is an interesting one. Bangladesh supporters of the tribunal processes/practices tend to use the 1946 Nuremberg trials as their standard by which to compare the current trials – in particular pointing to the fact that nearly 70 years ago there was no right to appeal. For them, since the 1973 Act has the right of appeal, and therefore an improvement on Nuremberg, no criticism is justifiable.

A trial that took place as long ago as Nuremberg shouldn’t, of course, be the template for one conducted in 2013. New standards have emerged, Bangladesh has signed up to international conventions which impose new obligations, and if there is any meaning to the Bangladesh foreign minister’s statements that the tribunal meets ‘all international standards’ (which she continues to utter at diplomatic exchanges), then one must look beyond Nuremberg. In any case, it is not at all clear, other than in the issue of the ‘right to appeal’ that the Bangladesh ICT comes out that much better than Nuremberg; whilst the 1946 trial was criticized at the time for many things (see the Economist editorial in October 1946, for example), there were no allegations of witness abduction or that of prosecution/tribunal collusion as there have been at the Bangladesh tribunal.

Therefore at first glance the Eichmann trial in the early 1960s could make a more interesting comparison – particularly because, like the Bangladesh tribunal, it was a national tribunal prosecuting international offences.

However, there are reasons why this may not be the case. Even though Israel was a relatively newly established country, it’s legal system in 1960 was more established and developed than that of Bangladesh’s now – which is replete with corruption, delays, politicization and inadequate resourcing. Comparing Israel’s criminal justice system in 1960 even with that of Bangladesh in 2010 is arguably not a fair one.

Another point about the Eichmann trial is that it is took place in a country without any political party supporting him. There was no Nazi party in Israel – and few if any Israeli citizens were supportive of Eichmannn or willing to be critical of the trial process. This is very different from Bangladesh – where two of the accused come from the main opposition party, the Bangladesh Nationalist Party and the other ten from its alliance partner, the Jamaat-e-Islami.

It was therefore always going to much easier for the Eichmannn trial to unify Israel – to succeed in a way in which The Economist claims the trial has not done in Bangladesh. If the Eichmannn trial had taken place in an Israel, where for example, the Nazi party remained a considerable political player, with three of its leaders ministers in a coalition government just five years before the trial – it is difficult to believe that the Eichmannn process would have been anywhere as smooth or unifying.

The third point about the Eichmannn trial is that it was not the perfect trial as implied by The Economist. The magazine alludes to the Nazi leader being ‘kidnapped’ but does not state that at the time this raised significant questions about the legality of the trial with The Washington Post editorial condemning Israel’s “jungle law” and The Christian Science Monitor equating Israel’s claims to those of the Nazis.

It is true that by the time the trial itself took place, Argentina and Israel had come to an agreement about the ‘kidnapping’, so that the court was able to argue that since ‘Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied.’ In addition, the Israeli court relied on Israeli legal precedents that the circumstances of his capture had no bearing on the legality of his trial. Nonetheless, one can imagine that The Economist would not be quite so obliging if the Bangladesh government sidestepped extradition and international laws and abducted Chowdhury Mueen Uddin or Ashrafuzzaman Khan, both under investigation for alleged war crimes committed during the 1971 war by the Bangladesh tribunal, from England and USA respectively.

The criticisms of the tribunal
The nub of The Economist’s piece is a number of criticisms of the Bangladesh international crimes tribunal. And here The Economist is on firmer ground.

The first criticism is that the government has interfered in the court’s deliberations. In the government news agency article, Dr M Zahir is quoted as saying, ‘What interference you are talking about? Had the government intended to interfere in the trial process they would not have constituted the tribunal and opt for a lengthy trial process . . . they (accused) could have been handled in other ways.”

Without going into too much detail, anyone who has read the Skype conversations between Justice Nizamul Huq Nassim and the ex-patriate lawyer Ziauddin Ahmed would realize that the government ministers, at the very least, had inappropriate contacts with the judges. These included seeking to dictate the sequence of judgments (with the obvious implication that they would be convictions) and forcing the resignation of one judge.

It is of course possible that in his conversations Justice Nassim was exaggerating or simply not telling the truth; that the things he tells Ziauddin are simply not true. And there is of course no other confirmation that the things Nassim said happened, actually did happen. Yet nonetheless, Nassim had no reason to lie about these things and none of the parties (other than Justice Jahangir) have specifically denied the specific claims made by the judge.

Secondly The Economist said that ‘Public discussion of the proceedings has been restricted.’ It is not entirely clear what The Economist is referring to here. Journalists are allowed into the tribunal and do report on it. The tribunal has been willing to use its very wide powers of contempt against journalists and papers and this certainly does inhibit critical journalism on the trials being published – but contempt powers are generally quite widely used by Bangladesh courts and so there is nothing special here. It is certainly true that tribunal registrar has at times hindered those linked to foreign observers from taking notes at the tribunal and that in addition to the contempt risks, few dare to write critically about the tribunal from an independent position for fear of being accused of being a Jamaati, and the social ostracism that will occur. However The Economist criticism is perhaps overplayed here.

The third criticism is the restriction on the number of defence witnesses. On this point, Dr Zahir is quoted by the government news agency as defending the restriction of witnesses. “The tribunal cannot and should not tolerate the defence’s effort to lengthen and upset the trial process by bringing witness after witness . . . The trial cannot go on for eternity,” he says.

However, allowing the defence to be given sufficient opportunity to present its case does go to the heart of due process in these trials.

And there is no doubt that the tribunal has for no apparent legitimate reason, restricted the number of defence witnesses that could come to the tribunal. In Delwar Hossain Sayedee’s case the prosecution had no limitations on the number of witnesses it could bring, and in fact brought 28 to court (which included seizure list witnesses and the investigation officers). Sayedee’s defence lawyers wanted to bring 48, but were only allowed a maximum of 20 – and in fact the tribunal stopped the defence case when it had only brought 17 witnesses. The tribunal also refused to issues summons for defence witnesses. The tribunal gave no clear reasons for either of these decisions.

In Abdul Quader Mollah’s case the prosecution again had no restrictions on witness numbers, and brought 12 witnesses to court. The defence had at the beginning of the trial given a list of 965 witnesses – clearly a ridiculous number. After the prosecution had completed its evidence, it applied to the tribunal for an order limiting the number of defence witnesses to ‘not more than 3 or 4’. The defence responded by saying it would reduce the number of witnesses it wished to call to the Tribunal to a reasonable number. In its order, the tribunal initially agreed to four defence witnesses being called, but following pleas from the defence increased the number to just 6.

The Mollah case was dealt with by a different Tribunal than the one dealing with the trial of Sayedee, and this court gave reasons for its decision – that in its view the defence was only going to need witnesses as part of its ‘alibi’ defence and six witnesses were sufficient. The problem with this argument is that the tribunal, when making this order, had absolutely no knowledge of what the defence witneses were or were not going to say and so had no basis to making that claim. (Indeed the tribunal was proved wrong as even amongst the six witnesses, there were also people that were not ‘alibi’ witnesses.) Moreover, even if the defence was only going to bring ‘alibi’ witnesses, how before any of the witnesses had come to testify could the tribunal know that six was sufficient?

In Golam Azam’s case the tribunal has closed the defence case after hearing only one witness. Thedefence had asked for a weeks adjournment to be able to allow them to call more witnesses, claiming that the Shahbag protests had scared many people from coming to give evidence. The tribunal rejected the application – having also previously refused to issue summons to allow two expert witnesses to come from abroad.

And in Kalam Azad’s in absentia trial, the state appointed defence lawyer did not call any witnesses.

The systematic restriction in the number of witnesses whom the Tribunal allow the defence lawyers to call is perhaps one of the most serious due process defects in the trials.

The Economist, next says that one witness ‘was even kidnapped on the steps of the court.’ This refers to the alleged abduction of Sukhranjan Bali, whose brother Bishabali was killed in 1971, and whom it is claimed had agreed to give evidence on behalf of Delwar Hossain Sayedee. Evidence strongly suggests that such an abduction by law enforcement officers did happen – and so the Economist is fair to make that comment. However since there remains no conclusive evidence, The Economist would have been truer to the record to have added the word ‘alleged.’ A related concern, on which the paper does not however comment, is the lack of interest on the part of the Tribunal to investigate the allegation, and its consideration of how this incident may affect the trial.

The UK magazine then goes on to comment on the judges who decided the Sayedee’s case. It states that ‘the presiding judge resigned and the death sentence was handed down by three men who had not heard all the witnesses.’ The Daily Star op-ed denies this and says ‘In fact, two of the three judges heard all the witnesses and the third judge heard both the prosecution and the defense arguments all over again.’

It is true is that none of the three judges heard all the evidence. Justice Anwarul Huq, appointed at the end of March 2012, heard all the defence witnesses, but none of the prosecution witnesses – except for the cross examination of the investigation officer. Jehangir Hossain appointed at the end of August 2012 had not heard any of the prosecution evidence. And Justice ATM Fazle Kabir judge had only heard the prosecution evidence – though not the cross examination of the investigation officer. So again, here The Economist is correct. In such a situation a retrial would arguably have been the right response.

The final criticism from The Economist refers to the Abdul Kalam Azad trial where the paper says that he was represented by a lawyer who did not have nearly enough time to prepare a case which ended in a death sentence. The Economist criticism here is actually the least of the problems with this trial! It was an in absentia trial and the state appointed lawyer had been a member of the governing ruling party in his youth, who admitted in an interview that he undertook no investigations on behalf of his client and did not even go to the alleged crimes scenes. In fact, the lawyer himself felt that he was given sufficient time to prepare himself.

More intriguingly, The Economist did not mention on its list perhaps the most serious concern with the tribunal – which it had in part exclusively revealed in a two page spread in December 2012 – which was the collusion between the prosecutors and Justice Nassim, who was chairman of one of the tribunals. It also showed how the judge was also working closely with an expatriate lawyer whom he knew was at the same time advising the prosecution.

It is often said by uncritical tribunal supporters that criticisms of the tribunal like the ones set out above are not relevant since the tribunal does not need to meet ‘international standards’. However, the question of 'international' standards is really a distraction since the concerns involve considerations at a far more basic level. One does not need to raise the language of international standards to appreciate that collusion between the prosecutors and a judge is wrong, that failing to allow defence witnesses to come to court is not fair, and the alleged abduction of a key defence witness by law enforcement agents from directly outside the tribunal raises serious questions about the role of the state in the trial.

Responding to ‘flaws’
The Economist editorial says that most Bangladeshis are ‘cheering on the tribunal’s flawed proceedings’ and ‘few seem to care a jot for due process.’

It is certainly true that, with very few exceptions, the country’s civil society establishment – along with anyone who supports the Awami League, or is a strong supporter of the war crimes tribunal or just hates the Jamaat-e-islami – either do not accept that there are any flaws in the tribunal or do not consider that any of the flaws are particularly significant, or that if there are any flaws, think that the overall purpose of bringing to justice those who died in 1971 overrides them. The general view, as The Economist says, is that the ‘defendants are getting their just deserts’ and due process arguments are simply strategies on the part of the accused to try and wriggle out of their guilt.

In its criticism of this attitude, what The Economist perhaps fails to appreciate is some of the reasons for these views; a desperate desire to see some kind of justice for the hundreds of thousands who lost their lives at the hands of the Pakistan military and their collaborators; long years of seeing those who supported the Pakistan military in 1971 rise to positions of power; a criminal justice system that cannot be trusted and constantly allows the ‘powerful’ and ‘influential’ to escape justice on technicalities; a view that the country could not organize any better kind of trials; knowing that this is the one and only chance for accountability; and a desire for the end of the influence of fundamentalist Islamic politics.

These may not ultimately be anywhere near good enough reasons to turn a blind eye to flawed trials – particularly when the world is watching, and as suggested by The Economist where they could initiate cycles of revenge and retribution – but these explanations do need to be taken into account when criticizing Bangladesh society’s response. Coming back to Israel, was their widespread concern and criticism in the country about the kidnapping of Eichmann? I don’t think so

What ultimately this is all about is the inherent difficulty in holding ‘war crimes’ trials within a country where the government has a clear political interest in the outcome of the trial, where the general population have been seriously victimized during the war and emotions are febrile, where the assumption of the accused’s guilt is strong amongst a very significant section, and where the independence of judges is under huge strain.

International criminal lawyers and activists always used to think that the goal was to bring justice as close to the people, to remove it from tribunals in The Hague and, bring it closer to the place where the crimes took place. Unfortunately, the Bangladesh tribunal – and in fact, though to a lesser extent, the Eichmann trial – show that this is far from the best approach if a fair process is considered at all important.

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.